In Error to the Court of Appeals of the District of Columbia. Franklin H. Mackey, for plaintiff in error. Enoch Totten and William Henry Dennis, for defendant in error. *Mr. Justice PECKHAM delivered the opinion of the court. This action was brought by the plaintiff in error to recover damages from the defendant corporation for personal injuries which he alleged he received by reason of the negligence of its agents and servants. The evidence given upon the trial upon the part of the plaintiff tended to show that on or about the 16th day of May, 1890, the defendant was a railroad corporation doing business in the District of Columbia, and that on the day above mentioned, at the city of Washington, in that District, the plaintiff was in the employment of the defendant, and had been working at its workshop; that he had finished his work for the day at about a quarter of 6 in the evening, and, leaving the shop, had started for his home. When he reached the intersection of South Capitol street and Virginia avenue, he stopped for a moment, and, while standing on the pavement on the south side of the railway track, which was in the middle of Virginia avenue, a repair train of the defendant corporation passed by him on its return from work for the day. Some of the testimony showed that the train was passing at the rate of 20 miles an hour, while other testimony showed a much less rate of speed. As the train passed the plaintiff, one of the workmen on board threw from the car on which he was standing a stick of bridge timber about six inches square and about six feet long. It struck the ground and rebounded, striking the plaintiff, and seriously and permanently injuring him. The defendant had been in the daily habit for several years of running out of Washington and Alexandria a repair train of open flat cars, loaded with its employés; and the train returned every evening about 6 o'clock, and brought the workmen back to their homes. These men were allowed the privilege of bringing back with them, for their own individual use for firewood, sticks of refuse timber left over from their work after repairing the road, such as old pieces of bridge timber, cross-ties, etc. It was the constant habit of the men during all these years to throw off these pieces of firewood while the train was in motion at such points on the road as were nearest their homes, where the wood was picked up and carried off by some of the members of their families or other person waiting there for it. only caution given the men on the part of the servants or agents of the company was that they should be careful not to hurt any one in throwing the wood off. The foreman of the gang was the man who usually gave such instruction. The This evidence having been given, the plain tiff rested, and the defendant then moved for the direction of a verdict in its favor, which motion was granted; and the judgment entered on the verdict, having been affirmed by the court of appeals (6 App. D. C. 385), is now before us for review. In this ruling of the courts below we think there was error. We are not called upon to say that the defendant was in fact guilty of negligence. The courts below have held as matter of law that the company was not liable, and hence a verdict in its favor was directed. On the contrary, we think the question whether the defendant was negligent was one which should have been submitted to the jury. 138 The plaintiff, at the time of the accident, had finished his employment for the day, and had left the workshop and grounds of the defendant, and was moving along a public highway in the city, with the same rights as any other citizen would have. The liability of the defendant to the plaintiff for the act in question is not to be gauged by the law applicable to fellow servants, where the negligence of one fellow servant by which another is injured imposes no liability upon the common employer. The facts existing at the time of the happening of this accident do not bring it within this rule. A railroad company is bound to use ordinary care and caution to avoid injuring persons or property which may be near its track. This is elementary. Shear. & R. Neg. (3d Ed.) § 477, and cases cited in notes. The duty to use ordinary care and caution is imposed, as we think, upon the company to the extent of requiring from it the use of reasonable diligence in the conduct and management of its trains, so that persons or property on the public highway shall not be injured by a negligent or dangerous act performed by any one on the train, either a passenger or an employé acting outside and beyond the scope of his employment. The company does not insure against the performance of such an act, but it rests under an obligation to use reasonable diligence to prevent its occurrence. An act of such a nature, either by a passenger or by an employé outside the scope of his duties and employment, is not to be presumed, and therefore negligence on the part of the company in failing to prevent the act could not probably be shown by proof*of a* single act of that kind, even though damage resulted, where there was nothing to show the company had any reason to suppose the act would be committed. Negligence on the part of the company is the basis of its liability, and the mere failure to prevent a single and dangerous act, as above stated, would not prove its existence. The persons on this train were employés in fact, and were being transported to their homes by the company, which had, during the time of such transportation, full control over their actions. Whether or not they were through with their work is not material If the act on the car were such as to permit the jury to find that it was one from which, as a result, injury to a person on the street might reasonably be feared, and if acts of a like nature had been and were habitually performed by those upon the car to the knowledge of the agents or servants of the defendant, who, with such knowledge, permitted their continuance, then, in such case, the jury might find the defendant guilty of negligence in having permitted the act, and liable for the injury resulting therefrom, notwithstanding the act was that of an employè, and beyond the scope of his employment, and totally disconnected therewith. Knowledge on the part of the defendant, through its agents or servants, that passengers or employés upon its trains were in the habit of throwing out of the windows newspapers, or other light articles, not in their nature dangerous, would not render the company liable on the ground of negligence, although on some one occasion an individual might be injured by such act. The result in that case would be so unexpected, so extraordinary, and so unnatural that a failure to prevent the custom could not be said to be negligence. But if a passenger upon a train, or an employé of the company upon one of its cars, should supply himself with a quantity of stones for the purpose of throwing them off the train as it passed through a city, can it be possible that under such circumstances, if this intended use of the stones came to the knowledge of those who had the conduct of the train, it would not be their duty to prevent the act? And would it be any answer for the company, when charged with negli*gence in knowingly or negligently permitting such passenger or employé to throw the stones, to say that the person throwing them was a passenger, or, if an employé, that he had completed his work for the day, and was being transported to his home on the car of the company, and that the act was without the scope of his employment? Surely not. It is not a question of scope of employment, or that the act of the individual is performed by one who has ceased, for the time being, to be in the employment of the company. The question is, does the company owe any duty whatever to the general public, or, in other words, to individuals who may be in the streets through which its railroad tracks are laid, to use reasonable diligence to see to it that those who are on its trains shall not be guilty of any act which might reasonably be called dangerous, and liable to result in injuries to persons on the street, where such act could by the exercise of reasonable diligence on the part of the company have been prevented? We think the company does owe such a duty, and if, through and in consequence of its neglect of that duty, an act is performed by a passenger or employé which is one of a series of the same kind of acts, and which the company had knowledge of, and had acquiesced in, and if the act be, in its nature, a dangerous one, and a person lawfully on the street is injured as a result of such an act, the company is liable. Any other rule would, in our opinion, be most disastrous, and would be founded upon no sound principle. We feel quite clear that, from the evidence in this case, it was for the jury to say whether the custom was sufficiently proved, and whether the act was of a nature from which injury to a person on the street might reasonably be expected, and also whether such acts had theretofore been performed with the knowledge and consent of the agents and servants of the defendant, and whether the company was guilty of an omission of the duty which it owed to the plaintiff as one of the public, lawfully using the street where the track was. We do not say that the jury should be instructed to find that the defendant was guilty of negligence in case they found from the evidence that this custom was known to its officers or, agents, but we do say that, the custom being, known, whether it was negligence or not for* the company to permit it under all the circumstances was a question to be decided by the jury, and not by the court. The company, of course, is not an insurer of the safety of the public in the highway along or near which its road may run; but it is bound, as we have stated, to use reasonable diligence to see to it that no dangerous acts which may result in injury to persons lawfully on the highway shall be committed by persons who are on its trains, whether as passengers or employés. If it neglect that duty, then there is a liability on its part to respond in damages for the injury resulting from that neglect. The fact that this custom had existed for some time without any injuries having been received by any one is not a legal bar to the liability. It may be addressed to the jury as an argument upon the question whether the act was, in its nature, dangerous, and whether, under all the circumstances, the company was guilty of any negligence in permitting its continuance; but, if the character of the act complained of is such that a jury might upon the evidence fairly say that injury to others might reasonably be apprehended, the fact that none such had theretofore occurred is not an answer, as matter of law, to the charge of negligence in continuously permitting acts of that nature. As against the contention that this act was not, in its nature, dangerous, it might be urged to the jury that the caution given to be careful showed that there might be danger in the performance of the act itself. It would be for the jury to answer the question. We are not able to see the bearing upon this case of the case of Walton v. Car Co., 139 Mass. 556, 2 N. E. 101. In that case there was but a single act,-that of throwing the bundle from the train by the porter of the parlor car. There was no evidence that any officer of the company on the train had the least reason to suppose the porter intended to do the act, or that it had been habitually done before; no evidence of any custom known to the defendant by which at that or any other particular point the porter of the car habitually and fre quently threw bundles from the moving train. Acquiescence on the part of the defendant after knowledge of the custom could not, from the one act, be imputed to it. Very probably, a single act so performed by the porter without the knowledge or assent of the defendant performed for his own purposes, and not in the scope of his employment, unexpected, and wholly disconnected from his duties-would not render the defendant liable for the injuries resulting to a third person from such act. If, however, it had been proven in that case that it was the custom on the part of the porters on that car to throw these bundles off while the train was in motion, and that this custom was known to the officers of the company, and was permitted by them, with the simple injunction that the porters should take care, and not hurt anybody, and if the jury found that the act was one dangerous in its nature, we think there is no doubt that the defendant would be liable for the injuries resulting from any one of such acts. The court, in the case cited, while holding the defendant not responsible, said: "The defendant is not responsible if the injury to the plaintiff was done by Maxwell (the servant of the defendant) without the authority of the defendant, and not for the purpose of executing defendant's orders or doing the defendant's work, and not while acting as such servant in the scope of his employment." The important point was, it is to be observed, that the act of Maxwell, although the servant of the defendant, was without its authority, knowledge, or acquiescence. In this case, upon the evidence submitted, the jury might be asked to infer knowledge on the part of the defendant of the existence of the custom and acquiescence on its part in such custom, and that, therefore, the acts of the individuals in throwing the timber were acts which were performed with the authority of the defendant. The act would be performed with the authority of the defendant, if, being aware of the custom, the defendant or its agents permitted such acts, and made no effort to prevent their performance, and issued no orders forbidding them. If the jury should also find that the act e was one of a dangerous nature, from which injury to an individual on the roadside might reasonably be expected, then the jury *might find the defendant guilty of a neglect of duty in permitting its performance. We do not think the case of Snow v. Railroad Co., 136 Mass. 552, can be distinguished from this case by reason of the simple fact that the person injured was a passenger who was at the station, and upon the platform, where the mail bag was thrown. It may be true, the defendant owes a higher duty to its passengers, in the shape of a greater degree of care, than it does to the public generally, but it is a question only of degree. It owes a duty to the public not to injure any one negligently, and the facts in this case make it a question for the jury to say whether it has not been guilty of negligence resulting in plaintiff's injury. Considerable stress was laid upon the case of Walker v. Railroad Co., 121 Mo. 575, 26 S. W. 360, as an authority against the principle which we have above referred to. We have examined that case, and regard the facts therein set forth as so materially different that the case cannot be regarded as opposed to the views we have stated. The baggage master, in gratuitously taking in his car the drills (not properly baggage) which he threw out at the station as he passed through, was held not to have been acting within the scope of his employment; and, as there was no proof of knowledge on the part of the railroad authorities, it was held that the railroad company was not responsible for this act of the baggage master not done in the scope of his employment, and of which they had no notice. It is stated in the opinion that the train master, the superintendent of the defendant, and also the general agent, were all ignorant that the drills were being carried by the baggage man on the passenger train, and, in speaking of the act and the arrangement under which it was performed, the court said: "The arrangement seems to have been one between plaintiff for the lime company and James, the train baggage man, with reference to something not in the line of his employment, and of which his employer had no knowledge and gave no consent." Upon the whole, we think it was a question for the jury to say whether the custom was proved; whether, if proved, it was known to and acquiesced in by those in charge of the train as servants of the company; whether it was a dangerous act, from which injury to a person on the street might reasonably be apprehended; and, if so, whether there was a failure on the part of the defendant to exercise reasonable care, in view of all the circumstances, to prohibit the custom and prevent the performance of the act. For these reasons we are of the opinion that the judgment should be reversed, and the cause remanded to the court of appeals of the District of Columbia, with directions to reverse the judgment of the supreme court of the District of Columbia, and to remand the case to that court, with directions to grant a new trial. (168 U. S. 90) TURNER v. PEOPLE OF STATE OF NEW YORK. (October 18, 1897.) No. 41. SALE FOR TAXES-CONCLUSIVENESS OF TAX DEED 1. Laws N. Y. 1885, c. 448, making tax deeds which had been on record for two years prior to the passage of the act conclusive evidence of the regularity of the sale and all proceedings prior thereto, if not assailed by direct proceeding within six months after the taking effect of the law, is, according to its principal intent and effect, 26 a statute of limitations, and is not repugnant to any provision of the constitution of the United States. 40 N. E. 400, affirmed. 2. The supreme court will not review, on writ of error, a decision of a state court involving no federal question, or other question of law, but a mere inference of fact from the evidence. In Error to the Court of Appeals of the State of New York. This was an action of replevin, brought April 11, 1887, in behalf of the state of New York, by the forest commissioners of the state, against Turner, in the supreme court of the county of Franklin, and state of New York, to recover a quantity of logs cut by him upon lands in that county, and within the forest preserve of the state, between September 1, 1886, and March 25, 1887. The answer denied the allegations of the complaint, and alleged that at the time mentioned therein the defendant was the owner and in possession of the lands. The material facts of the case, as found by a referee, were as follows: On October 12, 1877, the lands, being then owned by one Norton, were sold by the comptroller of the state of New York for unpaid taxes of the years from 1866 to 1870, inclusive, and were bid in by the comptroller in behalf of the state, and conveyed by him to the state by deed dated June 9, 1881, and recorded June 8, 1882. The defendant, more than nine years after that sale, acquired Norton's title in the land. The land was wild forest land, uncultivated, unimproved, uninclosed, and with no dwelling house or other building thereon. Neither the state nor any officer thereof ever took actual possession of the land; and no part of it was in occupancy of any person on October 12, 1879, when the period of two years allowed by law for redemption from the comptroller's sale expired. At the trial before the referee, the defendant, in order to prove the invalidity of the comptroller's deed by reason of illegality in the assessment of the taxes for the years 1867 and 1870, offered to show that the oath of the assessors to the assessment roll of 1867 was taken on August 10th, instead of on the third Tuesday of August, and that the assessors omitted to meet on the third Tuesday of August, 1870, to review their assessments for that year. The plaintiff objected to the evidence as immaterial, because the comptroller's deed was made conclusive evidence of those matters by the statute of New York of 1885 (chapter 448), which is copied in the margin.1 The defendant 1 An act to amend chapter four hundred and twenty-seven of the Laws of Eighteen Hundred and Fifty-Five, entitled "An act in relation to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes." Section 1. Section sixty-five of chapter four hundred and twenty-seven of the Laws of Eighteen Hundred and Fifty-Five, entitled "An act in relation to the collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes," is hereby amended so as to read as follows: Sec. 65. Such conveyances shall be executed contended that this statute was invalid, as contrary to the first section of the fourteenth article of amendment to the constitution of the United States. But the referee sustained the plaintiff's objection to the evidence, and directed judgment for the plaintiff, which was accordingly rendered by the court, and affirmed by the court of appeals. 145 N. Y. 451, 40 N. E. 400. The defendant sued out this writ of error. Frank E. Smith, for plaintiff in error. T. E. Hancock and Wm. Henry Dennis, for the People of the State of New York. Mr. Justice GRAY, after stating the case, de livered the opinion of the court. On May 15, 1885, the legislature of New York, by the statute of 1885 (chapter 283), declared that all the lands then owned or thereafter acquired by the state of New York within certain counties (one of which was Franklin county) should constitute and be known as the "Forest Preserve"; and established a forest commission of three persons, styled "For by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller; and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act, and all laws directing or requiring the same or in any manner relating thereto; and all other conveyances or certificates heretofore or hereafter executed or issued by the comptroller, shall be presumptive evidence of the regularity of all the said proceedings and matters hereinbefore recited, and shall be conclusive evidence thereof from and after the expiration of two years from the date of recording such other conveyances, or of four years from and after the date of issuing such other certificates. But all such conveyances and certificates and the taxes and tax sales on which they are based shall be subject to cancellation, as now provided by law, on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid. Sec. 2. The provisions of this act are hereby made applicable only to the following counties, viz., Clinton, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Lewis, Saratoga. St. Lawrence, Sullivan, Ulster, Warren and Washington, but shall not affect any action, proceeding or application pending at the time of its passage; nor any action that shall be begun, proceeding taken or application duly made within six months thereafter for the purpose of vacating any tax sale or any conveyance or certificate of sale made thereunder. Sec. 3. This act shall take effect immediately. est Commissioners," to "have the care, custody, control and superintendence of the forest preserve," and "to maintain and protect the forests now in the forest preserve, and to promote as far as practicable the further growth of forests thereon"; and authorized them to appoint a warden and other officers, and to exercise various powers to carry out its object. At the date of the passage of that statute, the time allowed by law for the redemption of lands from sale by the comptroller for nonpayment of taxes was two years from the time of sale. St. N. Y. 1855, c. 427, § 50. On June 9, 1885, the legislature of the state passed the statute of 1885 (chapter 448), to take immediate effect, which provided that all conveyances thereafter executed by the comptroller of lands in the same counties, sold by him for nonpayment of taxes, and having been recorded for two years in the clerk's office of the county in which the lands lay, should, "six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular," and as required by law; but that all such conveyances and the taxes and tax sales on which they were based should "be subject to cancellation, as now provided by law, on a direct application to the comptroller, or an action brought before a competent court therefor, by reason of the legal payment of such taxes, or by reason of the levying of such taxes by a town or ward having no legal right to assess the land on which they are laid." The land now in question was sold by the comptroller to the state October 12, 1877. The time allowed by law for redeeming the land from that sale expired October 12, 1879. The comptroller's deed to the state was made June 9, 1881, and recorded June 8, 1882. It had, therefore, been on record for three years when the statute of June 9, 1885, was passed and took effect; and by the terms of this statute, on December 9, 1885, the comptroller's deed became conclusive evidence that there was no irregularity in the assessment of any of the taxes for nonpayment of which the land had been sold and conveyed to the state. This action was brought April 11, 1887. The statute, according to its principal intent and effect, and as construed by the court of appeals of the state, was a statute of limitations. People v. Turner, 117 N. Y. 227, 22 N. E. 1022; Id., 145 N. Y. 451, 40 N. E. 400. It is well settled that a statute shortening the period of limitation is within the constitutional power of the legislature, provided a reasonable time, taking into consideration the nature of the case, is allowed for bringing an action after the passage of the statute, and before the bar takes effect. Terry v. Anderson, 95 U. S. 628, 632, 633; In re Brown, 135 U. S. 701, 705– 707, 10 Sup. Ct. 972. The statute now in question relates to land sold and conveyed to the state for nonpayment of taxes. It applies to those cases only in which the conveyance has been of record for two years in the office where all conveyances of lands within the county are recorded, and it does not bar any action begun within six months after its passage. Independently of the consideration that before the passage of the statute the plaintiff had had eight years since the sale, and three years since the recording of the deed, during which he might have asserted his title, this court concurs with the highest court of the state in the opinion that the limitation of six months, as applied to a case of this kind, is not repugnant to any provision of the constitution of the United States. It was argued in behalf of the plaintiff in error that the statute was unconstitutional, because it did not allow him any opportunity to assert his rights, even within six months after its passage. But the statute did not take away any right of action which he had before its passage, but merely limited the time within which he might assert such a right. Within the six months, he had every remedy which he would have had before the passage of the statute. If he had no remedy before, the statute took none away. From the judgments of the court of appeals in the case at bar and in the subsequent case of People v. Roberts, 151 N. Y. 540, 45 N. E. 941, there would appear to have been some difference of opinion in that court upon the question whether his proper remedy was by direct*application to the # comptroller to cancel the sale or by action of ejectment against the comptroller or the forest commissioners. But, as that court has uniformly held that he had a remedy, it is not for us to determine what that remedy was under the local constitution and laws. It was also argued that the plaintiff in error was in possession of the land, and could not be put to his action. But the decision below that he was not in possession involved no federal question, or any other question of law, but a mere inference of fact from the evidence, which this court is not authorized to review on writ of error. Dower v. Richards, 151 U. S. 658, 14 Sup. Ct. 452; Egan v. Hart, 165 U. S. 188, 17 Sup. Ct. 300. Judgment affirmed. (168 U. S. 86) ALASKA TREADWELL GOLD MIN. CO. v. WHELAN. (October 18, 1897.) No. 33. MASTER AND SERVANT-Fellow ServANTS. A meie foreman of a gang of laborers employed by a corporation, who is not the manager or superintendent of any department of its business, is a fellow servant of the men working under him, and it is immaterial whether or not he has power to employ and discharge them. 12 C. C. A. 225, 64 Fed. 462, reversed. The Chief Justice and Mr. Justice Harlan dissenting. In Error to the United States Circuit Court of Appeals for the Ninth Circuit, |